Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.
I.B. Right to liberty of person
21. Pursuant to the Immigration and Nationality Act, U.S. Immigration and Customs
Enforcement (ICE) may detain non-citizens under final orders of removal only for the period
necessary to bring about actual deportation. Additionally, two United States Supreme Court
decisions, Zadvydas v. Davis, (see note 7 below) and Clark v. Martinez, (see note 8 below) placed further limits on the allowable duration of detention. As a result of those decisions, ICE may not detain an individual for longer than six months after the issuance of a final removal order if there is no significant likelihood of actual deportation (for example, because the home country refuses repatriation) in the reasonably foreseeable future.
22. Although these two court decisions limit the ability of ICE to detain non-citizens
indefinitely, in practice, United States policy is a long way out of step with international obligations. Immigration enforcement authorities have failed to develop an appropriate appeals procedure, and for all practical purposes have absolute discretion to determine whether a non-citizen may be released from detention. Furthermore, those released from detention as a result of a post-order custody review are released under conditions of supervision, which in turn are monitored by ICE deportation officers. Again, ICE officers have absolute authority to determine whether an individual must return to custody. Given that these discretionary decisions are not subject to judicial review, current United States practices violate international law.
23. The Special Rapporteur wishes to stress that international conventions require that the decision to detain someone should be made on a case-by-case basis after an assessment of the functional need to detain a particular individual. He notes that the individual assessment of cases does not appear to be sufficient and that detention policies in the United States constitute serious violations of international due process standards. Based on individual testimonies, the Government’s own admissions and reports he received, the Special Rapporteur notes that the violations include:
- Failing to promptly inform detainees of the charges against them
- Failing to promptly bring detainees before a judicial authority
- Denying broad categories of detainees release on bond without individualized
- Subjecting detainees to investigative detention without judicial oversight
- Denying detainees access to legal counsel
24. In sum, in the current context the United States detention and deportation system for migrants lacks the kinds of safeguards that prevent certain deportation decisions and the detention of certain immigrants from being arbitrary within the meaning of the International Covenant on Civil and Political Rights (ICCPR), which the United States has signed and ratified.
Notes to Section I.B.
(Note 5) See US Code, Title 8, Chapter 12, Subchapter II, Part 1, § 1158 (asylum) and Part IV, § 1231 (b) (3) (Restriction on removal to a country where alien’s life or freedom would be threatened).
(Note 6) The principle of non-refoulement is enshrined in article 33 of the Convention relating to the Status of Refugees. See Sir Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of Non-Refoulement”, Office of the United Nations High Commissioner for Refugees.
(Note 7) 7 Ref. 533 U.S. 678 (2001).
(Note 8) Ref. 125 S. Ct. 716 (2005).